5 Definitions for Alternative Dispute Resolution

Alternative dispute resolution (ADR), is an umbrella term used for methods to resolve disputes internal to the organization and outside the court system.  Many organizations use one or all of the ADR techniques, with the techniques continuing to grow in popularity.  Union and nonunion organizations use ADR techniques to resolve disputes, large and small.  Dispute resolution is a necessity for any organization, resolution can impact organizational culture, engagement and turnover rates.  The techniques defined below can be used to resolve disputes outside of the workforce as well, we have mediation services in our communities that assist families, neighbors, etc. resolve disputes through proactive channels of communication.

The 5 Definitions of Alternative Dispute Resolution:

  1. “Arbitration: an ad judicatory process in which a neutral third party imposes a final, binding decision to resolve a dispute.
  2. Mediation: an informal process in which a neutral third party assists opposing parties to reach a voluntary, negotiated, non-binding resolution of a dispute; may be conducted internally or externally.
  3. Ombudsman: a neutral third party who is designated to confidentially investigate and propose settlement of complaints brought by employees; may be an insider or outsider.
  4. Open-door policy: a process in which employees are encouraged to discuss problems with their immediate supervisors or others in the chain of command.
  5. Peer review an internal process in which a panel of employees works together to resolve employment complaints.”[i]

Arbitrators, mediators and ombudsman are trained in dispute resolution techniques.  They know how to fact-find, draft agreements and issues decisions.  An open-door policy is an easy way to resolve disputes.  We listen to the issue (not listen to respond) and address any concerns.  Peer review is another process that can be implemented, this also needs to be managed proactively to ensure it’s legal.   All of the ADR techniques work, the effectiveness will vary by organization.  Select a process that works for your organization and be consistent with dispute resolution.

New York State Paid Family Leave Update:

Recent changes to NYS PFL confirmed that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the NYS Average Weekly Wage ($1.65 per week in 2018).  Employers can deduct .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, which is .126% of the annualized weekly wage.  This is a significant change, which better positions employers to collect the full PFL premium from each employee.

Work with your payroll companies and NYS PFL providers to ensure the calculations are accurate and deducted under current legislation.  If you are confused, seek guidance.  Like many laws, we continue to see changes to NYS Paid Family Leave. 

 

– Matthew Burr, HR Consultant

[i] American Arbitration Association, U.S. EEOC & SHRM Magazine

2018 W-4 Form, W-4 Requirements Annually, and changes to NYC Legislation

In late February, the IRS released the updated 2018 Form W-4 and an updated tax withholding calculator.  The calculator provides an opportunity for employees to check their 2018 tax withholding after the passage of the Tax Cuts and Jobs Act, prior to filling out a new Form W-4.

2018 Form W-4

IRS Withholding Calculator

Do employee’s need to complete a new Form W-4 annually:

“Not necessarily. A W-4 form remains in effect until an employee submits a new one except when an employee claims to be exempt from income tax withholding.”

Employers should ensure they have new W-4s for:

  1. New employees. Employers should keep copies of the most current W-4s on hand.
  2. Employees who had a change in withholding events during the year.
  3. Employees claiming exemption from withholding. To continue to be exempt from withholding in the next year, employees must give employers a new W-4 claiming exempt status by Feb. 15 of that year. If an employee doesn’t give you a new Form W-4, employers must withhold tax based on the last valid Form W-4 for the employee that doesn’t claim exemption from withholding or, if one doesn’t exist, as if he or she is single with zero withholding allowances.”[i]

 

IRS Publication 15 provides guidelines for employers to remind employees before December 1 of each year to submit a new W-4 form if the withholding allowances changed or will be changing in the next year; due to added dependents, new tax legislation, etc.  As employers, we need to ensure all of our new hire paperwork is up-to-date.  This recent change should be noted as part of your organizations onboarding/new hire process.

 

NYC Evolving Legislative Changes:

NYC Mandates Temporary Schedule Changes 7/18/18

The new law provides employees with additional rights to demand changes to their schedule.  The law permits employees to demand two temporary schedule changes per calendar year for personal events.  The definition of personal events is broad, which leaves room for interpretation.  There are guidelines and certain exemptions to the new rule.  However, it is broad and will cover many organizations.

NYC Mandates “Cooperative Dialogue” 10/15/2018

This law codifies the organizations obligation to engage in a cooperative dialogue with any employee who may be entitled to reasonable accommodation.  “Specifically, you will need to engage in a good faith written or oral “cooperative dialogue” with the employee addressing:

  1. The employee’s accommodation needs.
  2. Potential accommodations that may address the needs, including alternatives to an employee’s requested accommodation.
  3. The difficulties that such potential accommodations may pose for your business.

After a final determination is made at the conclusion of the “cooperative dialogue,” you must provide the employee requesting the accommodation with a final written determination as to whether or not the accommodation is granted.”[v]

The  legislative changes in New York City will not impact employers in the Southern Tier, unless you have employees in the city.  However, as we have seen in the past, changes in NYC make their way to Albany, which result in statewide sweeping legislative changes, which can and do impact organizations in the Southern Tier.  Continue to watch for legal updates at the federal, state and local level.  If you are confused, seek guidance.  Legislative change is a continuous process and it can be complex.  As society evolves, so do our laws and regulations.  Asking questions, attending trainings, working with consultants and attorneys will provide you with a clearer picture of the evolving legislation.

Interested in learning more from me? Check out the options shared here: 

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Coming in Spring 2019

Upcoming Corning Community College Training’s

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_015244.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iv] Burr Consulting, LLC, “3 Daylight Savings Time Wage & Hour Considerations”, Burrconsultingllc.com, November 6, 2017

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-employers-reasonable-accommodations.aspx

-Matthew W. Burr

4 New Hire Forms Needed in New York State

As we have now entered the second month in 2018, some of our organizations will be hiring new employees for continued operation and some for the upcoming seasonal summer months.  Hiring new employees into the workforce is great, we have a tremendous opportunity to set the new hire up for success with a great onboarding process and introduction to the organization.  With new hires, comes legal paperwork.  State and federal forms get updated and posted on government websites for all of us to use.  As leaders and business owners, we need to ensure our forms are updated and legal.

Below are the new hire forms needed in New York State:

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires and needs to be reviewed for expired ID’s; driver’s license, passport, etc. Organizations must verify that each new employee is legally eligible to work in the United States.  Ensure the form is filled out correctly and signed by the right person in the organization.  This form changed in late 2017.
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings. All employees should complete and sign a Form W-4 prior to starting work.  Currently, the 2017 form is still being used.  Watch for any updates or changes in 2018, related to the new tax legislation.
  3. Form IT-2104, Employer Allowance Certificate (NYS): This is the New York State withholding form required to be completed in full prior to an employee starts working for the organization. Ensure you are using the 2018 version of the form.
  4. Wage Forms Required by New York Labor Laws: Organizations are required to provide wage notification forms to all employees. The forms vary by hourly, salary, salaried nonexempt, etc.  The link above provides a definition on which form to use based on the classification of the employee.  Reminder, these forms were updated in 2017 as well.

These are the legally required forms that employees are required to complete prior to starting work (I-9 the first three working days).  Other forms will vary by organization; direct deposit, safety rules and regulations, handbooks and policies, IT and login information, safety and security, vehicle registration, cellphone policy, tour of the facility, labor and employment posters, payroll deductions, payroll processing, etc.  Remember, state forms will vary.  Pennsylvania uses a different withholding form from that used in New York.  Consultants should be providing a signed an updated (revised 11.2017) federal Form W-9.

Develop a checklist for your organization to ensure we consistently cover information for all new hires.  The onboarding process is an important part of the employment relationship and many people will decide during this process how long they will potentially stay with an organization.  As leaders, we need to ensure all employees feel welcome and engaged on day 1, while covering the legalities of the employment relationship.  If you need assistance developing a new hire orientation checklist, seek guidance, the last thing we want is to place a new hire in a conference room and have the individual read policies and sign paperwork alone all day.  I have been part of process like this and it does not work!

2018 Employee Handbook Changes, IRS Mileage Rate and Labor Poster Updates

A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies.  As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.

 Below are 5 areas to watch related to employee handbooks:

  1. Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer).  Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.
  2. Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements.  These decisions can impact our organizations.  I have not implemented arbitration agreements.  However, they are growing in popularity.
  3. Sexual Harassment/Harassment Policies: This speaks for itself.  California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently.  Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures.  Organizations need to be proactive and not reactive to issues.
  4. Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change.  The state has a website full of information to utilize as we move forward in 2018.

PFL Resource Page

Model Language for Employer Material

  1. Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana.  Medical marijuana law(s) continues to evolve.  “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]

As laws continue to evolve, now is the time to review handbooks, policies and procedures.  If you are unclear on a path-forward or what to look for, seek guidance.  Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.

2018 IRS Mileage Rate:

“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:

  • 5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.
  • 18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.
  • 14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]

Notice 2018-03

Mandatory State Labor Law Poster Changes Effective January 2018:

  • Alaska— Minimum Wage, effective Jan. 1, 2018
  • Arizona— Minimum Wage, effective Jan. 1, 2018
  • California— Transgender Rights, effective Jan. 1, 2018, Discrimination, Jan. 1, 2018
  • Colorado— Minimum Wage, effective Jan. 1, 2018
  • Florida — Minimum Wage, effective Jan. 1, 2018
  • Hawaii — Wage and Hour Laws, effective July 10, 2017, OSHA, effective Jan. 1, 2018
  • Maine — Minimum Wage, effective Jan. 1, 2018
  • Minnesota– Minimum Wage, effective Jan. 1, 2018
  • Missouri— Minimum Wage, effective Jan. 1, 2018
  • Montana— Minimum Wage, effective Jan. 1, 2018
  • Nevada — Rules to Observed by Employers, effective July 1, 2017
  • New Jersey— Minimum Wage, effective Jan. 1, 2018
  • New York— Minimum Wage, effective Dec. 31, 2017
  • North Carolina — Wage and Hour Notice to Employees, effective Dec. 31, 2017
  • Ohio— Minimum Wage, effective Jan. 1, 2018
  • Rhode Island — Minimum Wage, effective Jan. 1, 2018
  • South Dakota — Minimum Wage, effective Jan. 1, 2018
  • Vermont— Reasonable Accommodations for Pregnancy, effective Jan. 1, 2018
  • Washington— Minimum Wage, effective Jan. 1, 2018, Your Rights as a Worker, Jan. 1,2018

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/5-Employee-Handbook-Issues-to-Watch-in-2018.aspx

[ii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/2018-standard-mileage-rate.aspx

As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.

-Matthew W. Burr

3 Changes in New York State and 3 to Watch in 2018

As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018.  The law continues to evolve, which causes greater complexity for organizations throughout the country.  Proactive knowledge and planning will help any leader in managing through these significant changes.

Below are 3 upcoming changes in New York State:

  1. Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week.  This will be increased to $780.00 per week after 12/31/17.  We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
  • $727.50 per week on and after 12/31/16
  • $780.00 per week on and after 12/31/17
  • $832.50 per week on and after 12/31/18
  • $885.00 per week on and after 12/31/19
  • $937.50 per week on and after 12/31/20[i]

https://labor.ny.gov/formsdocs/wp/Part142.pdf

  1. Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier.  The rates vary in NYC and Long Island, but they also increase.  Watch for wage compression in your salary schedules.

https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage

  1. Paid Family Leave: This is a significant change throughout the state and will impact most organizations.  Ensure that your organization is prepared for the change on January 1, 2018.

Below are 3 potential changes to watch in 2018:

  1. NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State.  This is currently a proposal and has not been finalized yet.  More to come in 2018
  2. Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation.  These laws continue to evolve at the state level throughout the country.
  3. Salary History Requirements: These laws have changed in certain states and cities throughout the country.  We could see more change to these laws, locally and nationally.

Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation.  Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations.  Enjoy a safe & Happy New Year!

[i] https://labor.ny.gov/formsdocs/wp/Part142.pdf

5 Changes to New York City Fast-Food and Retail Scheduling Laws

On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws.  The laws impact “retail” and “fast food” employers throughout the city.  These significant changes impact; breaks between shifts, predictable hours and on-call scheduling.  These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.

Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:

  1. Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.
  2. Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts.  When an employee works a closing shift one night and opens the next day.  The law prohibits these consecutive shifts unless there is an 11-hour break between shifts.  However, employees can agree to clopening shifts, but must be paid $100 each time.
  3. Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically.  “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]
  4. Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance.  “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]
  5. On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance.  There are additional exceptions for workers covered by collective bargaining agreements.

These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States.  The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners.  If this impacts your organization, ensure you understand your obligations as an employer under the law.  Communicate and train supervisors and managers on these changes.  These are significant changes to the work relationship and will impact many organizations throughout New York City.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-scheduling-laws-for-new-york-city-fast-food-and-retail-employers.aspx?_ga=2.159635643.727342918.1511008822-1767537919.1462374782

 

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-scheduling-laws-for-new-york-city-fast-food-and-retail-employers.aspx?_ga=2.159635643.727342918.1511008822-1767537919.1462374782

 

2 Updates to the 2016 Overtime Rule

As the year comes to a close, it’s important to note that on November 6, 2017 the 5th U.S. Circuit Court of Appeals granted motion to the Department of Labor (DOL), to halt litigation over the 2016 overtime rule.  This motion makes it unlikely that the 2016 overtime rule will ever take effect.  If you recall in November 2016, the minimum salary level threshold for overtime and exempt status would have been raised to $47,476 per year, impacting more that 4-million people.

Below are 2 updates from the recent ruling:

  1. No Ambiguity: “The DOL wants to preserve its right to have the 5th Circuit decide that it has the authority to set whatever salary level it ultimately selects…potentially removing a precedent that could serve as a basis for challenging the next overtime rule the department issues.”[i]
  2. New Rulemaking: When the DOL under the current administration issues a new rule, it can seek to have the current appeal dismissed and the court’s decision vacated.  The focus currently is on a new rule that incorporates a more modest increase in the salary threshold.

The rule making process is scheduled to begin in July 2018.  Remember, this is a federal law; state specific laws can vary on exempt and non-exempt status.  In New York State, we have laws that impact Executive and Administrative Classifications and overtime exemption level thresholds, based on the location throughout the state.  These rates will increase on January 1, 2018.  Remember to review state and federal guidelines, to ensure legal compliance.

NY State Administrative Exemption Rates and Questions

NY State Executive Exemption Rates and Questions

Additionally, the minimum wage rate in New York State is scheduled to increase on December 31, 2017.  This again is based on location.  In Upstate New York, the rate increases from $9.70 to $10.40/per hour.  The federal minimum wage has not been increased since 2009.

NY State Minimum Wage Rates and Information

Federal Minimum Wage Chart

If you are confused by the classifying positions and exemption changes in New York State, seek guidance and ask questions.  Classifying positions can be complex.  Do not assume when classifying positions as exempt or nonexempt.  There have been multiple court rulings lately regarding mis-classification of positions as exempt.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-stay-granted.aspx

 

7 Updates for New York State Paid Family Leave

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state.  Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Form Overview Page

  1. Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.
  2. Bond with a Newborn, a Newly Adopted or Fostered Child: Employee is requesting Paid Family Leave to take time off to bond with a newly born, adopted or fostered child.
  3. Care for a Family Member with Serious Health Condition: Employee is requesting Paid Family Leave to take time off to care for a family member with a serious health condition.
  4. Assist Families in Connection with a Military Deployment: Employee is requesting Paid Family Leave to help relieve family pressures when someone is called to active military service abroad.
  5. Employer’s Application for Voluntary Coverage (No Employee Contribution): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).
  6. Employer’s Application for Voluntary Coverage (Employee Contribution Required): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).
  7. Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close.  Continue to monitor for changes in policy and statewide communications.  Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018.  Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year.  If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures.  This is a significant change at the state level, and it will impact most employers and employees in 2018.